Grand View Private Trust Company Ltd v Wong; Wang intervening

JurisdictionBermuda
CourtCourt of Appeal
JudgeClarke P,Smellie JA,Subair Williams JA
Judgment Date20 April 2020
Docket NumberCivil Appeal 2019 No 5A
Date20 April 2020

[2020] Bda LR 29

In The Court of Appeal for Bermuda

Before:

Clarke P; Smellie JA; Subair Williams JA

Civil Appeal 2019 No 5A

Between:
Grand View Private Trust Company Ltd
Appellant
and
Wong Wen-Young (aka Winston Wong)

and

Wong Ray-Tseng (aka Riley Wong) (an infant by his next friend, Grace Tsu Han Wong)
Respondents

and

Wang Ven-Jiao (aka Tony Wang)
1st Intervenor

and

Wu Wang Hsueh-Min (aka Jennifer Wang)
2nd Intervenor

Mr M Howard QC, Mr J Adkin QC and Mr C Luthi for the Appellant

Ms E Talbot Rice QC, Mr D Hagen QC and Mr R Attride-Stirling for the Respondents

Mr R Wilson QC and Ms F Rana-Fahy for the 1st Intervenor

Mr K Rowley QC and Mr M Watson for the 2nd Intervenor

The following cases were referred to in the judgment:

Eclairs Group v JKX Oil & Gas Plc [2016] 3 All ER 641

Marley v Rawlings [2015] AC 129

Richards v Wood & Wood [2014] EWCA Civ 327

Arnold v Britton [2015] AC 1619

Marks and Spencer plc v BNP Paribas Service Trust Co (Jersey) Ltd [2016] AC 742

In re Dyer [1935] VLR 273

Re Ball's Settlement Trust [1968] 1 WLR 899

Wyndham v Egremont; Re McCullagh's Will Settlement [2018] NI Ch 15

Duke of Somerset v Fitzgerald [2019] EWHC 726

Re Courage Group's Pension Schemes v Imperial Brewing Ltd [1987] 1 WLR 495

Bank of New Zealand v Board of Management of the Bank of New Zealand Officers Provident Association [2003] UKPC 38

Hole v Garnsey [1930] AC 472

Kearns v Hill (1990) 21 NSWLR 107

Lewis v Condon [2013] NSWCA 201

Mercanti v Mercanti [2016] WASCA 206

Re Anloma Pty Ltd [2018] NSWSC 1818

Re Z Trust [1997] CILR 248

Mirvac v Mirvac Funds [1999] NSWSC 457

Society of Lloyd's v Robinson [1999] 1 WLR 756

British Airways v Airways Pension Scheme Trustee Ltd [2018] Pens LR 19

Mackinnon v Regent Trust [2004] JLR 477

Tao v HSBC International Trustee [2019] HKCFI 1268

PNPF Trust Co Ltd v Taylor & Ors [2010] EWHC 1573

Commissioner of Taxation v Barwanna [2012] HCA 11

Dalriada Trustees Ltd v Faulds [2012] ICR 1116

Jenkins v Ellett [2007] QSC 154

Cachia v Westpac Financial Services Ltd [2000] FCA 161

Howard Smith v Ampol Petroleum Ltd [1974] AC 821

Re Manisty's Settlement [1974] Ch 17

Edge v Pensions Ombudsman [2000] Ch 602

Vatcher v Pault [1915] 1 AC 372

Re Shiu Pak Nin [2014] (1) CILR 173

Wood v Capita Insurance Services Ltd [2017] UKSC 24

Serco Ltd v Lawson [2006] ICR 250

Duke of Bedford v Marquess of Abercorn (1836) 1 My & Cr 312

Re Dilke [1921] 1 Ch 34

Re Triffitt's Settlement [1958] Ch 85

Re Harvey dec'd [1950] 1 All ER 491

Schmidt v Rosewood Trust [2003] 2 AC 714

Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86

Re A Trust [2012] JRC 066

Re C Trust [2012] JRC 088B

HSBC International Trustee Ltd v Poon [2014] JRC 254A

Re Lawrence's Will Trusts [1972] AC 481

Davis v Richards & Wallington Industries Ltd [1990] 1 WLR 1511

Kain v Hutton [2008] NZC 61

Briggs v Gleeds [2015] Ch 42

Coats UK Pension Scheme Trustees Ltd v Styles [2019] EWCA 35

Re Wightwick [1950] 1 Ch 260

Addition of beneficiary to trust — Transfer of trust assets — Whether addition and transfer was within the power to add a beneficiary — Fraud on the power — Remoteness of vesting

Topic

Page No.

JUDGMENT of Clarke P

3

Introduction

3

The Facts

4

The History

4

Developments in the early 2000s

5

The Establishment of the Wang Family Trust and the GRT

5

GRT No 1

6

The Wang Family Trust

6

Developments in 2005

7

The Addition of Grand View as a Beneficiary

7

The Key Provisions of the GRT

9

The Claim in the Action

10

The Judgment

10

Bank of New Zealand

15

The Parties' Submissions

20

The Appellants

20

The substratum rule

22

Other cases relied on by the judge

23

Authorities not cited to the judge

25

The Respondents' submissions

28

British Airways v Airways Pension Scheme Trustee

29

Commissioner of Taxation v Bargwanna

32

Grand View's other cases

35

The Respondents' conclusion

37

Discussion

38

The scope of the power

42

The Purpose of the Power

42

Conclusion

50

Remoteness of Vesting

51

The Judge's View

54

Grand View's submissions

55

Conclusions on clause 9

57

Conclusions on remoteness of vesting

59

Disapplication of clause 9

60

SMELLIE JA:

62

The Implication of Terms

65

Remoteness of vesting

66

SUBAIR WILLIAMS JA:

67

The Fraud on a Power Doctrine and ‘the Substratum Doctrine’

67

Cases decided under the Variation of Trusts Act 1958 do not assist

70

There is no sub-stratum doctrine in law or equity

71

Remoteness of Vesting

73

JUDGMENT of Clarke P

Introduction

1. The question at issue in this appeal is whether the execution by the Trustee of the Global Resource Trust (“GRT”) of a power contained in the Trust Deed to add a beneficiary to which it then transferred the whole of the assets of the Trust was valid or, as Kawaley AJ held on an application under Order XIV of the RSC, invalid as being beyond the power of the GRT Trustee. The assets of the GRT consisted of shares worth over US $560 million. The case raises fundamental issues as to the scope of powers of amendment contained in Trust Deeds and of the doctrine of “fraud upon a power1.

The Facts

2. Wang, Yung Ching (YC Wang), who died on 15 October 2008, and Wang, Yung Tsai (YT Wang), who died on 27 November 2014, (together “the Founders”), were brothers, who were born into a poor family. In 1954 YC Wang founded Fu-Mao Plastics Corporation which later changed its name to Formosa Plastics Corporation. In 1958 YT Wang joined him in the business. This led in due course to the formation of a group of companies called the Formosa Plastics Group (“FPG”), of which YC Wang was the Chairman, which became, and remains, one of the largest conglomerates in Taiwan. The assets of the GRT Trust consisted of an indirect interest in shares in FPG companies.

3. The Wang Family Tree is extensive. One of YC Wang's sons, by his second wife, was Wong, Wen-Young, also known as Winston Wong (“Dr Wong”). Dr Wong is a plaintiff in the action, and hence a respondent, together with Wong, Ray-Tseng, known as Riley Wong, Dr Wong's grandson and YC Wang's great-grandson. Dr Wong has four half-sisters, children of YC Wang's third wife, including Susan and Sandy Wang.

4. YT Wang had five children by his first wife. They are William, Wilfred, Sarah, Jennifer and Hsiueh-Kuang Wang (hereafter “the first family”). He had three children by his second wife who are, to use their common abbreviations, Tony, Tammy and Janis Wang (hereafter “the second family”). Dr Wong and the second family take a diametrically opposing view to that of YC Wang's children by his first wife as to the correctness of the judgment below.

The History

5. The evidence of Susan Wang2, which I summarise in this and the following paragraphs, is that the Founders felt strongly that, whenever possible, one must give back to society. They regarded FPG itself as one of their greatest legacies to Taiwanese society and, also, made very substantial sums available to establish a number of higher education institutions, hospitals and other charitable foundations. Her understanding, based on many conversations with YC Wang, her father, YT Wang, her uncle and Mr Wen-Hsiung Hung (“Mr Hung”), a close friend and confidant of YC and YT Wang, over the years until their respective deaths, was that the ownership of various holding companies established in Liberia and the BVI (“the Holding Companies”), which owned shares in FPG companies (worth in the year 2000 around US $1.8 billion), one of which was Grid Investors Corp (“Grid Investors”), had been entrusted to Mr Hung on the basis that he would use them for such purposes as might be directed by the Founders.

6. These purposes included the continued holding and purchase of shares in the FPG companies in order to assist the perpetuation of FPG and to provide funding for the charitable foundations which the Founders had established. By 2000 FPG had become very successful and the Founders extremely wealthy in their own right. By 2008 FPG was one of the largest conglomerates in Taiwan.

7. YC Wang had made clear to Susan Wang that neither of the Founders intended that the assets in the Holding Companies should ultimately form part of their estates upon their death – specifically they did not wish to leave these assets to their heirs by way of inheritance. Her father indicated to her that the Founders' wishes were that those assets should be applied towards the perpetuation of FPG and the fulfilment of the Founders' vision of giving back to society. The Founders hoped that their descendants would assume the role of caretakers or managers of that wealth for the greater good of society.

Developments in the early 2000s

8. By the summer of 2000 the Founders had turned their attention to succession planning. This included making arrangements to perpetuate and formalise the basis on which the Holding Companies would be held over the long term, and to put in place structures that would subsist long after the Founders and Mr Hung had died. Ultimately it was decided that a significant proportion of assets should be placed into a Bermuda Purpose Trust, which ultimately led to the creation in May 2001 of the Wang Family Trust (see [10] ff below). The Founders' original idea was that a single Bermuda Purpose Trust would be established to hold the FPG shares, whose purposes would include the continuous growth and prosperity of FPG and the support of the Founders' various charitable foundations. At that time the Founders also had in mind that the trust would make provision for those family members who served as directors of the company which was to be the trustee of the proposed Bermuda Purpose Trust to benefit personally in some very limited way. This...

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3 cases
  • Wong, Wen-Young (Winston Wong) v Grand View Private Trust Company Ltd
    • Bermuda
    • Court of Appeal
    • 12 April 2021
    ...before Kawaley AJ with which this Court is not presently concerned. 4 See Grand View Private Trust Company Limited v Winston Wong et al [2020] Bda LR 29 5 A copy of this trial exhibit [D4/37/1] was made available to this Court shortly after the 3 March 2021 hearing of this 6 Foot note 23: “......
  • Wang and Wong v Grand View Private Trust Company Ltd and Ors
    • Bermuda
    • Court of Appeal
    • 12 April 2021
    ...were heard before Kawaley AJ with which this Court is not presently concerned. 2 See Grand View Private Trust Co Ltd v Wong et al[2020] Bda LR 29. 3 A copy of this trial exhibit [D4/37/1] was made available to this Court shortly after the 3 March 2021 hearing of this 4 Footnote 23: “See Com......
  • Wang, Ven-Jiao (Tony Wang) v Wong, Wen-Young (Winston Wong)
    • Bermuda
    • Court of Appeal
    • 11 June 2021
    ...issues, this Court broadly narrated the background to these proceedings in Grand View Private Trust Company Ltd v Wong; Wang intervening [2020] Bda LR 29 and Tony Wang v Grand View PTC et al [2021] CA (Bda) 3 Civ, 12 April 5 The statements made by Tony's wife, Mrs. Lin Chien Hui (“Alice”) i......

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